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How to keep the office safe from the lawyers when a staffer gets fired

Terminations are what spark the vast majority of today’s employment law claims, says employment defense attorney Shari Lane. That’s one area where managers can’t afford to make mistakes.

Step back before pulling the trigger

Safety starts with two obvious precautions, Lane says.

First, review the record. Make sure it explains what has led to the decision. If there’s not sufficient documentation to support it, wait a few weeks or even a few months and gather more documentation.

And second, “go through the list of protected classes,” Lane says, to see if that person falls into any of them. If so, she says, be “extra careful” that there can be no argument the termination came as a result of the protected status.

Fire with the right words

Safety also calls for firing with the right words, and in that regard there are two more points.

First, don’t cushion the blow with a false remark such as “this wasn’t entirely your fault” or “we’ll hire you back when we can” or “this is financially driven.”

Similarly, don’t relate the firing to a protected status such as “I know you’ve had childcare problems” or “we understand you’ve had health issues.”

Those words can reappear in a wrongful termination claim.

The second point: Start with “as you know” and follow with a short recap of the warnings, perhaps “as you know, we’ve had problems with your absenteeism, and you’ve received a written warning.”

That reminds the staffer the firing isn’t a surprise and the office isn’t dropping a bomb on that person. It puts an end to any question of “what did I do?” or “why are you doing this to me?”

Then get to the bottom line: “so we are going to have to let you go.”

A question to be prepared for: “Why didn’t you fire So-and-So who did the same thing?”

Regardless of why So-and-So got away with it, just say “I can see how that would appear to be unfair to you, but that is a different situation, and the information is confidential. That’s all I can tell you.”

A final precaution is to have another person present as a witness. “Words get twisted, and employees forget things or hear what they want to hear,” Lane says.

Resignation instead of firing?

Should the manager give the staffer the option of resigning instead of being fired?

There are advantages to that, Lane says. One is that the office avoids a lot of the conflict that accompanies a firing. Another is that not getting fired “gives the staffer a soft landing.” There’s no termination to explain, so it’s easier to get another job.

But the disadvantage is that resigning prevents that person from collecting unemployment compensation. And with new jobs sometimes hard to find, there’s always the possibility the employee will turn around and claim the resignation was forced.

If the office opts to offer the option of resignation, Lane says, make sure it’s accompanied by a severance agreement where the employee gets some benefit such as payment and in exchange releases the office from all employment law claims.

Layoff instead of firing?

What about offering a layoff instead of a resignation?

Again, that can be an attractive alternative. It avoids a lot of conflict to say “we’ll call this a layoff and won’t challenge your unemployment benefits.”

And as with a resignation, the staffer can look for a new job without having to explain a firing and can also collect unemployment compensation.

But there’s still risk – a relatively new one.

Traditionally, most states have verified unemployment eligibility simply by notifying the employer when an employee made a claim. If the employer didn’t respond, the claim was approved.

No more. States with a shortage of unemployment funds investigate those claims. They demand documentation about layoffs, and what they’re looking for is evidence of some other reason for termination so they don’t have to pay.

If the record shows only a layoff, that’s legitimate. But it if says it’s a layoff in lieu of termination, Lane says“that’s going to cause problems for both parties.”

Letters of recommendation?

Should the office give a recommendation for someone who is laid off?

Doing so can make a difference in whether that employee gets another job – and doesn’t make a claim against the office. But it can also be risky.

The safest approach is to have a provision in the handbook that the office “typically” or “normally” provides prospective employers no more than the employment dates, the title of the last position held, and the final wages.

The words typically and normally allow for some wiggle room, Lane explains.

On the positive side, if a stellar employee is laid off for unavoidable reasons, the office can say “normally our policy is to say only X, but I would hire this person back in a heartbeat.”

On the not-so-positive side, if the staffer was less than stellar, the office doesn’t have to say anything.

For most employees, however, the dates-position-wage answer is safest.

How long to keep firing records?

How long should the office keep the personnel file of a fired employee?

Lane’s recommendation is six years.

Some states don’t call for that long a period, she says, but six years is a safety point because that’s how long the statute of limitations for breach of contract claims runs. “And it’s better to err on the side of caution,” she says.

What files can the staffer see?

Is the office required to show a fired employee all the documentation that led to the firing?

Many states require that employers show employees their personnel files. Some also have requirements on how quickly the employer has to produce the file. And some say employees can see the original file while others say a copy is enough.

But before giving anything to a fired employee, let an employment law attorney see it. There could be items the office doesn’t have to produce. And there could be items the office cannot produce by law.

What about at-will employment?

If the office has employment at will, why worry about firing anybody?

With at-will employment, either employer or employee can end the relationship at any time and for any reason or for no reason at all. But that doesn’t give the office free rein in letting people go, Lane says.

It means the office can fire somebody “for any reason other than those protected by law, and there’s a long laundry list of what’s protected by law,” Lane says. So long, in fact, she says that “it’s hard to find the one person who doesn’t fall into some protected class.” Past the obvious protections of age, race, and so on, almost everybody has had a medical condition, and many women have taken time off to care for sick children.

At-will or not, the manager should take every possible step of safety before firing anybody.

What are the documentation risks?

What documentation elements should the manager be most watchful of?

Lane cites two.

First, make the documentation clear and complete. She points out that it’s not uncommon to open a personnel file and find “a note scrawled on a paper napkin that says ‘late again’ without a date or what was done about it.”

Never get into a position where the office has to create a record retroactively, she says.

Anything related to discipline needs an entry of “I told Staffer A she was late for the sixth time. I told her if it happened again she would be fired.” And the person who writes that should sign and date it.

Second, never put anything in the record that could show bias against a protected employee class.

Everybody knows protection goes to age, religion, and gender. But not everybody is aware that it also extends to an employee who makes a protected complaint such as a complaint about overtime or about an illegal activity. Also protected are use of FMLA leave and applying for workers’ compensation.

In one client office, she says, an employee complained about a dangerous working condition and the supervisor wrote on the complaint “overreacting.”

The supervisor was right, but if that employee had later said “I made a complaint about something that was illegal and all the supervisor did was tell me I was overreacting,” the office would have had to answer some difficult questions.

In documentation, even the wording counts, Lane says. Don’t document that the employee claims an absence is due to illness; write instead that the employee says it’s due to illness.

Claims says the employer doesn’t believe the employee. And if that person gets fired and if those absences were protected by law, it can look like the firing was retaliation for them.

In addition, keep documents related to protected classes separate in the file so there can be no assertion they influenced a disciplinary decision. Those are papers such as medical documents or workers’ compensation claims or discussions about physical conditions that affect the work.









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